Once both spouses decide to divorce, or one of them has communicated their intention to the other, a phase is opened in which both parties must agree on the effects of divorce in a regulatory agreement.
It is advisable to follow the following rules:
- An agreement imposed by the other party should never be accepted.
- It is common for the spouse to decide to divorce, to take the initiative and to give a draft agreement to the other. This draft should be reviewed by the lawyer of the other party in order to agree on a wording that is fair.
- It is not advisable for a spouse to negotiate for himself. This can cause tense situations that should be avoided.
- It is advisable that each party has its own lawyer and it is these professionals who are in charge of negotiating the agreement. In this way, the parties can maintain the cordiality between them.
- If the same lawyer advises both spouses, a significant cost savings will be produced. But it is advisable that the elected lawyer be truly independent in order to guarantee his impartiality.
The duration of this phase will depend on each specific situation. From our experience, among family lawyers, agreements are achieved in a reasonable amount of time.
As long as the negotiation lasts, the lawyers mediate so that the coexistence in this phase is cordial.
It is important to follow our advice on the following situations:
- Leave or stay in the family home.
- Start making “separate lives.”
- Use of vehicles and other common goods.
- Activities with minor children.
- Payment of rents, mortgages and expenses.
The agreement is embodied in a written document to be signed by both parties.
- Once signed, it must begin to be fulfilled. (However, as long as it is not ratified, no judicial action can be taken in case of non-compliance).
- It must be ratified later in a family court or a notary, in the case of a notarial divorce.
- From the signature to the ratification in a court usually a period of 3 months elapses. In case of a notary divorce, the ratification coincides with the formalization of the notaral deed of divorce, and therefore it will be immediate.
If a reasonable amount of time has elapsed the agreement is not possible, a judicial process of contentious divorce must be initiated:
- It can take about six months.
- Negotiation can continue. At any time a contentious divorce can be redirected to a divorce of mutual agreement.
- The contentious divorce will result in a trial and a judgment in which the effects of the divorce on each of the parties and the minor or incapacitated children will be agreed.